McAdoo v. McCoy

• Decision Date: 23 October 1919
• Docket Number: (No. 1004.)
• Citation: 215 S.W. 870
• Parties: McADOO et al., Directors General of Railroads, v. McCOY.
• Court: Texas Court of Appeals

Page 870

215 S.W. 870

McADOO et al., Directors General of Railroads, v. McCOY.

(No. 1004.)

Court of Civil Appeals of Texas. El Paso.

October 23, 1919.

Rehearing Denied November 13, 1919.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Suit by Neva M. McCoy, administratrix, against W. G. McAdoo and his successor, Walker D. Hines, Directors General of Railroads. Judgment for plaintiff, and defendants appeal. Affirmed.

Turney, Burges, Culwell, Holliday & Pollard, of El Paso, for appellants.

Hudspeth, Wallace, Harper & Berkshire, of El Paso, for appellee.

HIGGINS, J.

Neva M. McCoy, the surviving wife of Buford McCoy, deceased, and administratrix of his estate, brought this suit against the Atchison, Topeka & Santa Fé Railway Company, the Rio Grande, El Paso & Santa Fé Railroad Company, W. G. McAdoo and his successor, Walker D. Hines, Directors General of Railroads, to recover damages resulting from the death of Buford McCoy.

Upon trial a peremptory instruction was given to find in favor of the two railroad companies. Verdict was returned and judgment so rendered. As to the other defendants the issues were submitted to the jury and found in favor of the plaintiff, and damages assessed in the sum of $20,000 for pecuniary loss suffered by Mrs. McCoy and the two minor children of herself and deceased. The verdict apportioned $10,000 of the damages to Mrs. McCoy, and $5,000 to each of the children. The verdict assessed the further sum of $5,000 for the conscious pain and suffering endured prior to death by the deceased resulting from the injury. Judgment was rendered in conformity with the verdict. Later a remittitur of $2,500 was entered upon the item of $5,000 allowed for the pain and suffering of deceased. From this judgment the Directors General appeal.

Opinion.

The court instructed the jury as follows:

"(3) You are instructed that it is unlawful for any common carrier to haul, or permit to be hauled or used on its line, any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.

"Now, if you find from a preponderance of the evidence that on or about the time complained of in plaintiff's petition a car or cars, between which the deceased, Buford T. McCoy, was caught, was or were not equipped with couplers coupling automatically by impact, and you further find that the fact that such car or cars, if any, were not so equipped was a proximate cause of deceased's, Buford T. McCoy's, injury and death, you will find for the plaintiff against the defendants William G. McAdoo, Director General of Railroads, and Walker D. Hines, Director General of Railroads; and unless you so find, you will find for the defendants.

"(4) If you find that the cars between which the deceased, Buford T. McCoy, was caught, were at the time equipped with couplers coupling automatically by impact, you will find for the defendants."

In the first three propositions subjoined to the first assignment it is objected that the court erred in its charge in failing to submit the issue of contributory negligence on the part of the deceased, which was duly pleaded, and, as claimed by appellants, is raised by the evidence.

No objection of this kind was made to the court's charge as required by the act of 1913 (chapter 59, p. 113). In this condition of the record any error of this kind in the court's charge presents no ground for reversal. Ry. Co. v. Dickey, 108 Tex. 126, 187 S. W. 184. But the contention raises a question underlying a number of the assignments, and for that reason it will be considered upon its merits.

It is now well settled by the decisions of the Supreme Court of the United States that in actions based upon the Federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. §§ 8657-8665), in connection with the Federal Safety Appliance Act (U. S. Comp. St. §§ 8605-8623), contributory negligence on the part of the employé is not available as a defense where a violation of the Safety Appliance Act was a concurring proximate cause of the death or injury of such employé. Ry. Co. v. Campbell, 241 U. S. 497, 36 Sup. Ct. 683, 60 L. Ed. 1125; Ry. Co. v. Wagner, 241 U. S. 478, 36 Sup. Ct. 626, 60 L. Ed. 1110. Appellants do not question the correctness of this rule, but assert that Mrs. McCoy does not base her right of action upon the Federal Employers' Liability Act, but rests it solely upon the Safety Appliance Act. The petition alleges that the defendants were interstate carriers by railroad; that at the time of his injury the deceased was engaged as a switch foreman, handling cars moving in interstate commerce; that the cars were not equipped with couplers coupling automatically by impact; that, they having failed to automatically couple by impact, the deceased went in between them to inspect the couplers and repair same, and while there the head cut of cars rolled down towards the other car, and he was caught between them and so injured that his death resulted. The foregoing is the substance of the allegations of the petition pertinent to the question considered, and they are regarded as stating a cause of action based upon the Federal Employers' Liability and Safety Appliance Acts. The allegations exclude the idea that the cause of action is in any wise predicated upon the statutes of Texas. The evidence by the plaintiff disclosed that at the time of his injury deceased was acting as a switch foreman, and with another switchman, C. G. Davis, was handling six cars at the smelter near El Paso. A switch engine was also engaged. Five of the cars were Santa Fé cars (called Chino cars), and the other a coal car. The Chino cars were special service cars, and used exclusively in hauling concentrates from the plant of the Chino Copper Company at Hurley, N. M., to the smelting plant where the injury occurred. They came from Hurley to El Paso over the Atchison, Topeka & Santa Fé Railway Company and the Rio Grande, El Paso & Santa Fé Railroad, and are then switched to the smelter. The coal car came from Oro Grande, N. M., to El Paso, over the El Paso & Southwestern, and was there delivered to the Rio Grande, El Paso & Santa Fé, and thence taken to the smelter. These cars came to the smelter loaded and were weighed. After unloading they were again weighed to determine the load thereof. At the time of the accident the weighing operation of the empty cars had just been completed, one car at a time having been pushed upon the scales and weighed. The five Chino cars were coupled together. The coal car was attached to the engine. All that remained to be done was to make the coupling between the five Chino cars and the coal car, couple up the air, get other cars at the smelter, and go to town (El Paso). Three attempts were made by Davis to couple the coal car to the five Chino cars, and they failed to couple automatically by impact, and there is the testimony of Davis and the witness Carl that the coupling appliance on the coal car was worn and defective. The third attempt to couple automatically by impact having failed, McCoy told Davis that he would make the coupling, and instructed Davis to go and couple up the air, the braking power, on the five cars. Davis started to the five cars, and McCoy went in between the string of five cars and the coal car. At the time he went in the cars were separated a short distance and all were stationary. Davis testified that just as he turned the angle cock on the rear of the five cars they began moving forward towards the engine. This movement was unexpected and was apparently due to gravity. The movement caught McCoy between the cars, and injured him so severely that he died shortly thereafter. The record is silent as to the purpose for which the coal car was to be used after it was returned from the smelter to the yards in El Paso, but as to the five Chino cars it is shown by the testimony of the witness Carl that they were used exclusively in hauling concentrates from Hurley, N. M., to the El Paso Smelting Works; that they came from Hurley to El Paso over the lines of the two railway companies, and are then switched to the smelter. The witness Davis testified concerning the use of the Chino cars to substantially the same effect, and further as follows:

"I don't know how long those cars had been in El Paso, and I don't know where they came from to El Paso, not direct. Of course, you understand, when I spoke of the Chino cars, we know what is in them, and we get accustomed to where they go. No, sir; it is no part of my duty to find out that; we are instructed. These were empties we were handling at that time. No, sir; I don't know of my own knowledge when they expected to leave El Paso or where they were going, except, as I said before, about the Chino cars. I know this, we can tell by the cars as to where to put them; we know where to put the cars in the train, and we know where they go to. No; I wasn't doing that on this occasion; it was up to us just to bring them to El Paso. Another crew handles them in the yard here, and I wasn't a member of that crew."

There is nothing in the record to impeach the testimony of Carl and Davis concerning the use of the Chino cars.

Now, upon the facts stated, was the deceased, at the time of his injury, engaged in interstate commerce so as to render applicable the Federal Employers' Liability Act? This, we think, must be answered in the affirmative.

In the handling of cars containing freight from one state to another, employés of railroad companies are frequently required to ascertain the weight of contents at the time of the final delivery. This is done by weighing the car while loaded, and again after being emptied.

It has been held that employés engaged in such work are within the federal act if the cars so weighed contained traffic moving from one state to another. Ry. Co. v....